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RULE §707.791What is sexual abuse?

(a) Sexual abuse is a subset of the statutory definitions of abuse that appear in Texas Family Code §261.001(1) and includes the following acts or omissions by a person:

  (1) Sexual conduct harmful to a child's mental, emotional, or physical welfare, including:

    (A) Conduct that constitutes the offense of continuous sexual abuse of young child or disabled individual under §21.02, Penal Code;

    (B) Indecency with a child under §21.11, Penal Code;

    (C) Sexual assault under §22.011, Penal Code; or

    (D) Aggravated sexual assault under §22.021, Penal Code;

  (2) Failure to make a reasonable effort to prevent sexual conduct harmful to a child;

  (3) Compelling or encouraging the child to engage in sexual conduct as defined by §43.01, Penal Code, including compelling or encouraging the child in a manner that constitutes an offense of:

    (A) Trafficking of persons under §20A.02(a)(7) or (8), Penal Code;

    (B) Solicitation of prostitution under §43.021, Penal Code; or

    (C) Compelling prostitution under §43.05(a)(2), Penal Code;

  (4) Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by §43.21, Penal Code, or pornographic; or

  (5) Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by §43.25, Penal Code.

(b) In this section, the following terms have the following meanings:

  (1) "Causing, permitting, encouraging, engaging in, or allowing" the photographing, filming, or depicting of, or sexual performance by, a child as described in paragraphs ((4) and (5) of subsection (a) is not limited to actions the child was forced or coerced to participate in. The definition of sexual abuse is met even if the child voluntarily participates in the action.

  (2) "Compelling or encouraging the child to engage in sexual conduct" as described in paragraph (3) of subsection (a) does not require that the child actually engage in sexual conduct. The definition of sexual abuse is met as long as there is a substantial risk of a child engaging in the sexual conduct.

  (3) "Pornographic" or "pornography" means material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct in accordance with Texas Penal Code §43.26.

  (4) "Sexual conduct harmful to a child's mental, emotional or physical welfare" includes but is not limited to rape; incest; sodomy; inappropriate touching of the child's anus, breast, or genitals, including touching under or on top of the child's clothing; deliberately exposing one's anus, breast, or any part of the genitals to a child; touching the child in a sexual manner or directing sexual behavior towards the child; showing pornography to a child; encouraging a child to watch or hear sexual acts; compelling, encouraging, or permitting a child to engage in prostitution; watching a child undress, shower, or use the bathroom with the intent to arouse or gratify one's sexual desire; voyeurism; sexually oriented acts, which may or may not include sexual contact or touching with intent to arouse or gratify the sexual desire of any person; and any sexually oriented act or practice that would cause a reasonable child under the same circumstance to feel uncomfortable or intimidated or that results in harm or substantial risk of harm to a child's growth, development, or psychological functioning.

(c) For purposes of subparagraph (A) of paragraph (1) of subsection (a), we will investigate conduct that constitutes continuous sexual abuse of a child as long the child is under 18 years of age and regardless of any disabilities the child may have.

Source Note: The provisions of this §707.791 adopted to be effective July 15, 2020, 45 TexReg 4780; amended to be effective September 22, 2022, 47 TexReg 6250

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